Dershowitz and proportionality

I don’t find this article very convincing. I had a quick look to see if anyone had written any full response to the article, but couldn’t find any, so here are a few comments.

I will put aside the concerns I have about Dershowitz’s reputation (but happy to provide the sources of my concern to anyone who’s interested); and of course intellectual argument is independent of the author’s reputation. But there is an appeal to authority in the article, called “the former head of the Israeli air force”, and it is relied upon for one of the few facts he alleges — an anecdote that Hamas use human shields; certainly a demonizing story. When Dershowitz cites such an authority for this event, that is hearsay rather than direct citation, private communication rather than publicly available information, and coming at first instance from a former official the State engaged in massive bombardment, with an interest in demonizing the enemy and glorifying his own military, as part of a military campaign which includes what was publicly announced to be a massive public relations campaign. The story might be true — in which case, cited without regard to Palestinian humanity, it is still racist — but all evidence must be evaluated.

Whatever the case, one should separate the arguments that Hamas is committing war crimes and that Israel’s actions are appropriate, even “commendable”. I have no argument with the former; the latter, however, is more controversial.

Why appropriate, even “commendable”? It seems difficult to argue in light of the facts of what the Israeli military is doing. And as it turns out, the only way Dershowitz can argue it is by failing to mention anything that the Israeli military has actually done. All he can mention about what the Israeli military is doing (as opposed to Hamas) is one (poorly sourced) anecdote of Israeli military restraint, which also serves the purpose of demonizing Hamas, and some generalities about a policy of restraint. And in any case, these are references to things the Israeli military has allegedly not done, rather than actual things it has done.

Well, perhaps the “commendability” of military actions can be judged in the abstract, without reference to facts and reality of what those actions are and what they have caused; perhaps all judgments of humanitarian law can be made in the realm of platonic ideals; perhaps war is just a branch of pure mathematics. At least, that’s the way Dershowitz proceeds.

That’s okay; I am a pure mathematician; we can evaluate his claims on their merits and submit his paper to peer review.

First, he cites the aforementioned (poorly sourced) anecdote demonizing Hamas and claiming Israeli restraint. Demonizing your enemy, suggesting they don’t love their children, does not justify bombing anything, however correct it is, or however racist it is. One anecdotal (poorly sourced) exercise of restraint among the ongoing slaughter is barely evidence of a general government policy — but nevertheless I do believe some such policy exists, independently of Dershowitz’s flimsy evidence. The restraint of the Israeli military is such that, uncontroversially, it has bombed police stations, a university, a television station, killled hundreds, deaths on either side are in a ratio of roughly 100:1, and UN officials estimate that at least 25% of the dead are civilians. Perhaps if a different policy were followed, and civilian casualties rose to 50%, he would care? Is there a fundamental mathematical constant of proportion of acceptable civilian casualties?

Despite Dershowitz’s platonic, scholastic approach, he appears to assert that the relevant number is zero: “The claim that Israel has violated the principle of proportionality — by killing more Hamas terrorists than the number of Israeli civilians killed by Hamas rockets — is absurd.” There seems to be an assumption that any Palestinian person killed is a “Hamas terrorist”. All statistics require evidence, of course; since Dershowitz presents none of Palestinian civilian casualties, we can assume the answer is zero. In the pure-mathematical approach to war then, civilian casualties inflicted by the author’s favoured state are zero by assumption. Perhaps in future development of the field, we can simply define all casualties not to exist at all. All is for the best, after all, in this best of all possible worlds.

(That’s all quite apart from the other definitional issue with “terrorist”, for which designation we often have little more to go on than the declaration of the attacking forces as to who they just killed; but that is a concern from the realm of the profane.)

Dershowitz’s second argument from the Platonic realm is more serious, and invokes international humanitarian law. He considers the “principle of proportionality”, which is contained in the Fourth Geneva convention, and in Protocol I to those conventions (also customary international law). We can state what these rules are.

Under the Fourth Convention, civilians must be treated humanely. Article 33 of that convention prohibits all collective punishments, and the punishing of civilians for offences they have not committed. Under articles 51 and 52 of Protocol I, there are specific rules regarding attacks on civilians and civilian buildings::

* Civilians shall not be the object of attack.* Attacks designed to spread terror are prohibited.* Indiscriminate attacks are prohibited. Indiscriminate attacks include not only those which have no specific military objective, but also those attacks which are performed in such a way that the attacks cannot be limited in their effect to civilians as required by international law.* In particular, art.51(5)(b) specifically says that attacks are indiscriminate, and hence constitute war crimes, if they “may be expected to cause incidental loss of civilian life… which would be excessive in relation to the concrete and direct military advantage anticipated.”* Moreover, under article 52, civilian objects (e.g. police stations, universities, television stations) are not to be attacked, and “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.” (art.52(3))* Attacks must be limited to military objectives.

So, in the case of bombing police stations, a university, a television station, and whatever other targets in a densely packed urban areas, which of course may be expected to cause incidental loss of civilian life — the immediate legal questions are: is it “designed to spread terror” — in which case it is terrorism and a war crime? Is it aimed at civilians — in which case it is a war crime? Is it “a civilian object”, with benefit of the doubt against military use — in which case bombing it is a war crime? And in any case, might it be expected to cause civilian death or injury which is “excessive” in relation to the “concrete and direct military advantage anticipated”? There is also a broader question: Does it constitute a collective punishment?

Those are subjective questions and for now I will leave them to individual judgment in each case, in regard of the numbers of casualties on either side. Those are just some of the relevant legal questions; and legality and morality are of course not the same thing. But a simpler and more conservative question is how any bombing that goes beyond hitting rocket positions confer any “military advantage anticipated” other than zero; and a simpler point again is that any positive number is in “excess” of zero. One conclusion, which seems not particularly controversial in light of the facts, is that both sides have committe

d serious violations of international humanitarian law — with the scale of their atrocities however being orders of magnitude apart, and the more lethal side being armed to the teeth by the government that governs us.

But in the pure-mathematical version of war, these mundane applications of the general theory are not considered. Instead, Dershowitz’s approach sticks to hallowed theoretical ground:

“First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants. Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian.”

The first statement is true, certainly. The second, taken literally, is certainly wrong: any military attack must be made for a military purpose; you cannot just massacre enemy combatants because you are in an armed conflict, and because one of your civilians might die in that conflict; international law does not condone such atrocities; there is no such theorem even in pure-war-theory. But assuming by “combatants” he means “combatants firing rockets at Israeli civilian populations and thereby committing war crimes”, he’s correct, at least as a matter of law. And with the assumption that all deaths are of this type, in another shining example of the triumph of abstract theory, he has defined away much of the military action of his favoured state so as not to exist.

He then goes on to say:

“Second, proportionality is not measured by the number of civilians actually killed, but rather by the risk posed. This is illustrated by what happened on Tuesday, when a Hamas rocket hit a kindergarten in Beer Sheva, though no students were there at the time.”

The first sentence is again false even in the abstract. We just saw that the appropriate question — apart from broader questions such as collective punishment — is whether the “incidental loss of civilian life… which would be excessive in relation to the concrete and direct military advantage anticipated”. Even having chosen to consider only sacred theory and not profane fact, that’s not a correct statement of theory. Even in the chosen terrain of Platonic ideals, his description of the relevant theory is woefully inadequate, referring to the risk of civilian causalties, but whiting out the requirements of “military advantage” and whether they are “excessive”.

His omission also makes the description logically incoherent. One thing cannot be proportional; there must be two things, which are in a certain proportion. Proportionality cannot be “measured” unless one measures two things relative to each other. But perhaps Dershowitz is not actually an arithmetician, and cannot be expected to understand what proportions, or ratios, or fractions are.

Nevertheless, Dershowitz *is* a law professor, and so has no excuse, despite his arithmetical difficulties. Is he ignorant of the relevant law, or is he deliberately misrepresenting it? Or does he assume, by his silence, that all actions of the Israeli military confer military advantage, and are not excessive, by definition? If so, another theoretical breakthrough!

(He has also refused to mention all the other rules of international humanitarian law, such as prohibition on attacking “civilian objects”, and the requirement of “military objectives”. Perhaps these laws are defined so they cannot be broken.)

His example in the second sentence is a good one: it is one of his few deviations from the platonic realm, though as we see, not about any action of the Israeli military, rather about an uncontroversial war crime of Hamas. And similar considerations apply when a far more accurate and destructive probably-US-supplied Israeli missile hits a university, or a TV station, or a police station. But those events, as we have seen, are defined so as not to exist.

So, Dershowitz does not mention anything about the bombing which actually *has* been carried out by Israel, or what its consequences have been. Perhaps that is because, upon even the slightest examination of that evidence, “commendable” actions might be revealed as war crimes, and Dershowitz becomes worse than an apologist for war crimes, he becomes an enthusiastic cheerleader.

My suggestion is that colleague Dershowitz’s paper be rejected for publication. As a condemnation of Hamas’ war crimes, I think it is good. As spreading racism against Palestinians, it is not. And as a justification of Israel’s actions, it is ridiculous. To consider those actions as a branch of pure theory, removed from all reality, is ridiculous — and even by its own logic it is mostly wrong and misrepresents the relevant law. Coming from a law professor, it is even worse. Moreover, when this article has already been published in a major newspaper, and when it supports the one side in this conflict that receives massive amounts of US funding, as well as ideological and diplomatic support, which is perpetrating military activities of the type discussed above, there is responsibility on us not to let it pass.

* * *

I apologise for the flippancy of these comments, because this is a serious matter. We deserve to hear more serious commentary in our major newspapers than the fantasies and fantastic omissions of this article. War and armed conflict is a terrible, terrible thing; it causes mangled bodies, weeping families, broken bones, and dead children. It breeds hate, it dehumanizes, it crushes the spirit, it kills hope. It cannot be considered in the abstract; it must be considered in relation to its effects on human beings. War is the total failure of the human spirit.

To write an article about a major armed conflict without acknowledging the uncontroversial existence of massive civilian casualties is quite an achievement. To get such an article published in a major newspaper is another. That says something.

The analysis here is very superficial and solely in response to Dershowitz; it should not be considered anything like a proper analysis of all the relevant international law (I barely even mentioned collective punishment). For a brief analysis of the relevant law in this immediate conflict, which is less favourable to Israel, see for instance Phyllis Bennis’ recent article at http://www.tni.org/detail_page.phtml?act_id=19052. The international law of the occupation more generally is a much longer story, and less favourable to Israel again; see for instance the judgment of the International Court of Justice on the wall, available at http://www.icj-cij.org/docket/files/131/1671.pdf; paragraphs 70-78 and 86-89.